Ex parte Steve Marshall, in his official capacity as Attorney General of the State of Alabama (In re: Megan Carmack and Leigh Gully Manning, individually and on behalf of minor children, Michaelyn Leigh Manning and Michael Sanders Manning v. Regions Bank, in its fiduciary capacity as trustee of the Mabel Amos Memorial Fund) (Montgomery Circuit Court: CV-22-900830) and (In re: Tyra Lindsey, a minor, by and through her mother and guardian, Denese Rankin; and Steve Marshall, in his official capacity as Attorney General of the State of Alabama v. Regions Bank, in its fiduciary capacity as trustee of the Mabel Amos Memorial Fund) (Montgomery Circuit Court: CV-23-900219).

Rel: January 10, 2025

Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern

Reporter. Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts,

300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229-0650), of any typographical or other

errors, in order that corrections may be made before the opinion is printed in Southern Reporter.

SUPREME COURT OF ALABAMA

OCTOBER TERM, 2024-2025

_________________________

SC-2024-0546

_________________________

Ex parte Steve Marshall, in his official capacity as Attorney

General of the State of Alabama

PETITION FOR WRIT OF MANDAMUS

(In re: Megan Carmack and Leigh Gulley Manning, individually

and on behalf of minor children, Michaelyn Leigh Manning and

Michael Sanders Manning

v.

Regions Bank, in its fiduciary capacity as trustee of the Mabel

Amos Memorial Fund, et al.)

(Montgomery Circuit Court: CV-22-900830)

SC-2024-0546

and

(In re: Tyra Lindsey, a minor, by and through her mother and

guardian, Denese Rankin; and Steve Marshall, in his official

capacity as Attorney General of the State of Alabama

v.

Regions Bank, in its fiduciary capacity as trustee of the Mabel

Amos Memorial Fund, et al.)

(Montgomery Circuit Court: CV-23-900219)

PER CURIAM.

This is the second time that a mandamus petition has been filed in

these cases, which were consolidated in the Montgomery Circuit Court

("the circuit court") below. See Ex parte Marshall, [Ms. SC-2023-0894,

May 31, 2024] __ So. 3d __ (Ala. 2024). These proceedings involve the

Mabel Amos Memorial Fund ("the trust"), which is a charitable trust

created by the will of Mabel S. Amos ("Amos"). Generally, the trust was

created for the purpose of providing financial assistance to beneficiaries

-- which are chosen at the discretion of the board members of the trust

through an application process -- desiring to obtain higher education.

The plaintiffs in the underlying actions -- Megan Carmack and Leigh

Gulley Manning ("Leigh"), individually and on behalf of Carmack's minor

2

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children, Michaelyn Leigh Manning, and Michael Sanders Manning, and

Tyra Lindsey, a minor, by and through her mother and guardian, Denese

Rankin ("Lindsey") -- have alleged in the circuit court that the trustee

and board members of the trust breached their fiduciary duties in various

respects and commenced the underlying actions in an effort to, among

other things, remove the trustee and the board members, have a new

trustee and new board members appointed, and restore the allegedly

misappropriated assets of the trust. The circuit court appointed a special

master under Rule 53, Ala. R. Civ. P., and referred the entirety of the

underlying actions to the special master. The circuit court also appointed

James C. White, Sr., C.P.A., to aid the special master in providing an

accounting of the trust.

The first time these cases were before us, Attorney General Steve

Marshall ("Marshall"), who was added as a party to the underlying cases,

petitioned this Court for writs of mandamus directing the circuit court to

vacate its order appointing a special master and referring the entirety of

the cases to the special master. We granted Marshall's mandamus

petitions and ordered the circuit court to vacate its order appointing a

special master and referring the cases to him.

3

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Facts and Procedural History

The facts and procedural history are set forth in full in Ex parte

Marshall. Amos's will directed that, upon her death, certain proceeds of

her estate be used to establish the trust. Amos died in 1999, and, after

her estate was probated, the corpus of the estate was distributed to create

the trust in 2002. Regions Bank served as the trustee of the trust and

administered it in conjunction with the trust's board. At times relevant

to these proceedings, the following individuals served as board members

of the trust: Thomas Albritton, Rick Clifton, John Bell, and Drew McNees

("the board members"). According to Amos's will, "[t]he net income from

the trust fund after payment of all costs of administration shall be

expended to fund or to provide scholarships for deserving young men and

women of this State, and to assist them in attending any educational

institution." Amos's will stated that the trustee is to make distributions

from the trust at the direction of the trust's board and that the trustee

"shall not engage in any act of self-dealing …."

According to the pleadings filed below, the trust did not initially

have substantial income. However, in 2011, oil was discovered on a piece

of property held by the trust, and the income of the trust substantially

4

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increased. From that time forward, the pleadings allege, Regions Bank

and the board members breached their fiduciary duties in various

respects by, allegedly, charging excessive fees and making distributions

contrary to the terms of the trust. As a result, the plaintiffs commenced

the underlying actions, which were eventually consolidated, in an effort

to, among other things, remove the trustee and the board members, have

a new trustee and new board members appointed, and restore the

allegedly misappropriated assets of the trust. Marshall filed a motion to

intervene in one of the consolidated actions (he had been named as a

defendant in the other consolidated action and later had been realigned

as a plaintiff), which we explained in Ex parte Marshall, as follows:

"On March 9, 2023, Marshall filed a motion to intervene

in [one of the consolidated cases]. Citing § 19-3B-110,[ Ala.

Code 1975,] Marshall argued that he, as the attorney general,

has the rights of a qualified beneficiary of the trust and, thus,

has standing to enforce the terms of the trust. The circuit

court granted Marshall's motion to intervene ….

"On April 4, 2023, … Marshall filed a complaint against

Regions Bank and the board members. Marshall alleged:

" '8. Regions [Bank] and the board members,

jointly, and severally and separately, engaged in

acts of self-dealing, or breached their fiduciary and

other duties to the trust by failing to prevent or

prohibit self-dealing, or by permitting and

acquiescing in self-dealing, and engaging in other

5

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acts and omissions in violation of statutory and

common law duties owed to the trust.

" '9. By way of example only, and without

limitation, Albritton self-deal [sic], personally

profited or gained from the [trust] in violation of

the [trust] terms, the Alabama Uniform Trust

Code, common law, and relevant Internal Revenue

Service rules and regulations. [Regions Bank] and

the board [members], jointly and severally,

impermissibly awarded scholarships or grants to

Albritton's children, and paid or caused to be paid

scholarships or grant money from the [trust]

totaling $135,000 for his children to attend college

at the University of Texas at Austin.

" '10. These scholarship or grant awards are

impermissible actions by the board members and

[Regions Bank] that violate the terms of the trust,

are prohibited self-dealing and private

inurements, and breaches of fiduciary duties owed

by [Regions Bank] and [the] board members ....

" '11. Without limitation, [Regions Bank],

and board members Thomas Albritton, John Bell,

Rick Clifton, and or Drew McNees, jointly, or

separately and severally, breached their duties

owed to the trust, including fiduciary, [common-

law] and or statutory duties, to prevent [the] board

members from engaging in acts of self-dealing and

granting themselves benefits for personal gain.'

"Marshall asserted against Regions Bank and the board

members claims of breach of fiduciary duties, unjust

enrichment, negligence, wantonness, and violation of

Alabama's Uniform Trust Code, § 19-3B-101 et seq., Ala. Code

1975, as well as a claim seeking an accounting. Marshall

requested compensatory and punitive damages, an

6

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accounting of the assets and investments of the trust, as well

as an accounting of the fees paid by the trust, and an

injunction against Regions Bank

" 'enjoining [it] from committing further breaches

of [the] trust (Ala. Code § 19-3B-

1001[(b)](2)(1975)); compelling Regions [Bank] to

redress the breaches of trust [pleaded] above by

paying money to the trust (Ala. Code § 19-3B-

1001[(b)](3)(1975)); ordering an accounting of the

trust (Ala. Code § 19-3B-1001[(b)](4)(1975));

appointing a special fiduciary to take possession of

the trust property and administer the trust (Ala.

Code § 19-3B-1001[(b)](5)(1975)); remove [Regions

Bank from the position of trustee] for those

reasons set forth in Ala. Code § 19-3B-706 (1975),

including the fact that Regions [Bank] has

committed or allowed to be committed a serious

breach of trust; and that Regions [Bank] has failed

persistently to administer the trust (Ala. Code §

19-3B-1001[(b)](9) (1975)).' "

Ex parte Marshall, ___ So. 3d at ___.

Eventually, the circuit court entered an order appointing a special

master under Rule 53. The circuit court's order stated, in pertinent part:

" 'It has become apparent that the appointment of a

Special Master is necessary to hear pending motions and

other matters and make recommended orders. Pursuant to

Rule 53, A[la]. R. Civ. P., it is hereby ORDERED that JUDGE

CHARLES PRICE is appointed Special Master to hear all

matters in the above-styled case.

" 'In addition, JAMES C. WHITE, SR., CPA, ... is

appointed to review all matters associated with accounting,

computation, examination of books and records relating to the

7

SC-2024-0546

trust, as those issues shall be further identified and defined

by the Special Master upon review of the pleadings and upon

hearing the parties' dispositive motions, all as provided by the

law of Alabama governing the administration of trusts.

" 'The Special Master shall have the rights, powers, and

duties provided in Rule 53 and may adopt such procedures as

are not inconsistent with that rule, with the law of Alabama

governing the administration of trusts and with this or other

orders of the court.

" 'The Special Master shall make findings of fact, as

necessary, and shall recommend conclusions of law with

respect to matters presented by the parties, including a

recommended conclusion of law as to which purported

plaintiffs have standing to bring claims in this matter, and

[he] shall report such findings of fact and such recommended

conclusions of law expeditiously to the court.

" 'Compensation at rates mutually agreeable to the

Special Master and the parties shall be paid from the ... trust

to the Special Master and Accountant on a monthly basis,

together with reimbursement for reasonable expenses

incurred by the Special Master. If the parties and the Special

Master or Accountant are unable to agree upon the

compensation, it shall be fixed by the court. The Special

Master and Accountant shall, within five (5) days, inform the

court if he and the parties have agreed upon [his]

compensation.' "

Ex parte Marshall, __ So. 3d at __ (capitalization in original).

Marshall petitioned this Court for writs of mandamus ordering the

circuit court to vacate its order. We granted Marshall's petitions,

concluding:

8

SC-2024-0546

"In summary, the circuit court's order referring all

matters in these cases to a special master exceeded its

discretion. As to the referral of the matters to be tried without

a jury, the circuit court did not indicate that an 'exceptional

condition' necessitated the referral. See Rule 53(b)[, Ala. R.

Civ. P.]. As to the referral of the accounting, the circuit court

did not indicate that the accounting would prove complicated

in some way, and, even if the accounting was properly referred

to a special master, the referral of an accounting does not

justify the referral of all the other matters in the cases.

Accordingly, we grant Marshall's petitions and order the

circuit court to vacate its … order referring the cases to a

special master."

Ex parte Marshall, __ So. 3d at __. This Court issued its decision in Ex

parte Marshall granting Marshall's petitions on May 31, 2024. On June

3, 2024, Lindsey filed an application for rehearing.

While the application for rehearing was pending in this Court, the

circuit court vacated its order appointing a special master and referring

the entirety of the underlying cases to the special master. The circuit

court then scheduled a hearing to occur on July 11, 2024, to hear

arguments from the parties and to determine how to proceed in light of

this Court's decision in Ex parte Marshall. On July 5, 2024, before the

hearing, Lindsey provided the circuit court with numerous tax filings

from previous years that had been filed by the trust with the Internal

Revenue Service; those documents were in addition to other of the trust's

9

SC-2024-0546

tax documents that Lindsey had previously provided. Also on July 5,

2024, Lindsey filed with the circuit court a proposed order that, if

adopted, would appoint White as a special fiduciary of the trust under §

19-3B-1001(b), Ala. Code 1975. Under Lindsey's proposed order, White

would, among other things, take possession of the assets of the trust,

administer the trust pending the circuit court's consideration of whether

to remove the trustee and the board members of the trust, conduct a full

accounting of the trust, and make a determination as to whether Regions

Bank had breached its duties as the trustee of the trust.

On July 11, 2024, the circuit court held the scheduled hearing.

Although we do not have a transcript of the hearing, Lindsey states that,

at the conclusion of the hearing, the circuit court invited the parties to

submit further written arguments on the appointment of a special

fiduciary. On July 25, 2024, the parties filed their requested argument.

Marshall argued that the appointment of a special fiduciary under § 19-

3B-1001(b) is essentially the same thing as the appointment of a special

master under Rule 53, characterizing Lindsey's request for the

appointment of a special fiduciary as a "change[-]of[-]verbiage gimmick."

Specifically, Marshall argued that Lindsey's request that White be

10

SC-2024-0546

ordered to conduct a full accounting of the trust and to determine

whether Regions Bank had breached its duties as trustee is exactly the

kind of order that this Court directed be vacated in Ex parte Marshall.

Lindsey argued that it is within the circuit court's discretion under

§ 19-3B-1001(b) to appoint a special fiduciary to take possession of the

trust property and administer the trust and to order an accounting.

Moreover, Lindsey argued, Marshall, in the complaint that he had filed

against Regions Bank, a summary of which is set forth above, had

previously requested that the circuit court appoint a special fiduciary to

take possession of the trust property and administer the trust and to

order an accounting. Lindsey further discussed the differences between

the appointment of a special master under Rule 53 and the appointment

of a special fiduciary under § 19-3B-1001(b) and argued that this Court's

decision in Ex parte Marshall did not prohibit the circuit court from

appointing a special fiduciary under § 19-3B-1001(b).

On August 8, 2024, the circuit court entered the following order

appointing White as a special fiduciary of the trust:

"1. The court has before it the tax filings (Form 990-PF's)

by the Mabel Amos Memorial Fund ('Trust') for the years

2002-2022 and a verified copy of the Last Will and Testament

and Codicil of Mabel S. Amos, which contains the terms of the

11

SC-2024-0546

… []Trust[]. These documents were proffered by Petitioner,

Tyra Lindsey.

"2. The Trust's tax filings were sworn by the Trust to

contain true and accurate information concerning the Trust's

disbursements and other operations. They were filed by the

Trust under oath with the Internal Revenue Service. These

records thus contain information whose accuracy cannot

reasonably be questioned and are hereby judicially noticed

pursuant to Rule 201, Ala. R. Evid.

"3. The information contained in the Trust's tax filings

disclose that the Trust distributed $135,000 in scholarship

funds to the children of Thomas Albritton, a trustee of the

Trust. These disbursements clearly violated the Trust's

prohibition on private inurement and self-dealing on the part

of the trustees, set forth in Article V, part E of the Trust. The

tax filings also reveal that the trustees distributed Trust

funds directly to third parties that were not 'young men and

women of the State' as required by the Trust. The tax filings

indicate that in some cases these distributions were not for

scholarships, but 'general purposes'; in other cases, where the

disbursements went to universities and foundations to create

scholarship funds at their respective institutions, the

scholarship recipients would be chosen by individuals other

than the Board Members of the Trust, a violation of the

explicit terms of the Trust.1

"4. In addition to the improper scholarship awards to

non-individuals, it has been specifically and credibly alleged

that the Trust awarded scholarships to individuals who were

explicitly identified by Petitioner Lindsey as being the

children and grandchildren of staff members of the trustees'

law firm, to the child of a former partner and judge before

whom the trustees practiced law, and to the children of

wealthy clients of their law firm. These scholarships would

have served to benefit personally the trustees and would

constitute a violation of the private inurement provisions of

12

SC-2024-0546

Article V, part E of the Trust. The extent of these improper

disbursements is not currently ascertainable as, unlike the

scholarship awards to Thomas Albritton's children and to the

third-party entities, they have not been disclosed in the

Trust's tax filing.

"5. The Trust's tax filings also indicate that after the

Trust became wealthy from oil revenue in 2010, Regions Bank

greatly increased its charges to the Trust for its

administrative services although it spent the same amount of

time working on Trust matters both before and after the Trust

became wealthy.

"6. All parties seeking to remove the trustees in this case

have requested that this court appoint a Special Fiduciary to

administer the Trust and that the Special Fiduciary perform

an accounting. This includes the Alabama Attorney General,

Tyra Lindsey, and Megan Carmack/Leigh Manning.

"7. Alabama's Uniform Trust Code provides that this

court may intervene in the administration of a trust when

invoked to do so by an 'interested person.' Ala. Code [1975, §]

19-3B-201(a). Additionally, Ala. Code [1975, §] 19-3B-706(a)

provides that a 'settlor, a co-trustee, or a beneficiary' may

request that a court remove a trustee, or that the court on its

own initiative may remove a trustee, and thereafter order

further relief pursuant to Ala. Code [1975, §] 19-3B-1001(b).

"8. The Supreme Court decided in this case that this

court had subject matter jurisdiction over the Trust. … The

Supreme Court did not decide the issue of whether Lindsey

and Carmack/Manning had standing to also invoke the court's

jurisdiction, nor did it decide what role they would have in the

litigation. … At this point in the litigation, it is unnecessary

to decide the issue of standing of Lindsey and

Carmack/Manning, as their presence adds no more additional

authority to the court than it already has to intervene in the

administration of the Trust, and neither Lindsey nor

13

SC-2024-0546

Carmack/Manning are seeking any personal claim in this

matter.

"9. The Supreme Court's decision came after this court

entered an Amended Order Appointing a Special Master ….

This referral order appointed Ret. Circuit Judge Charles Price

as a Special Master, to be assisted by an accountant, James

White, CPA. The Supreme Court vacated this Amended

Order, holding that it did not comply with the requirements

of Ala. R. Civ. P., Rule 53 that concerns the appointment of

Special Masters. …

"10. Having subject matter jurisdiction in this matter,

the court has authority under Ala. Code [1975, §] 19-3B-

1001(b)(5) to appoint a special fiduciary 'to take possession of

the trust property and administer the trust,' and under

subpart (b)(4) to 'order a trustee to account.' Under Ala. Code

[1975, §] 19-3B-706(c), the appointment of a special fiduciary

may be made, 'pending a final decision on a request to remove

a trustee.' This authority to appoint a Special Fiduciary is in

addition to, and an alternative to, the appointment of a

Special Master.

"11. Rather than appoint a Special Master bound by

Rule 53 to make findings only on specifically delegated

matters, the court has decided to appoint a temporary Special

Fiduciary under Ala. Code [1975, §] 19-3B-1001(b) to take

possession of the trust property and administer the Trust

pending a final decision on the removal of the trustees, and to

conduct an accounting of the Trust's books and records for

purposes of determining the full extent of the trustees'

breaches.

"12. There are several bases for this decision. First, it is

impossible to determine at this point the extent of the

trustees' breaches of duty, as only the tip of an apparent

iceberg of impropriety can be seen. Second, having a Special

Fiduciary take possession of the records of the Trust would be

14

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superior to identifying in a referral order the specific facts

that a Special Master would be limited to addressing. Doing

the latter would limit the inquiry into the trustees' potential

misconduct to a 'laundry list' that would not include improper

scholarship awards and other disbursements not yet known.4

The court takes note that the Trust's tax filings reveal that

prior to 2014, the Trust disclosed the names of its scholarship

recipients, but beginning in 2014 the trustees did not disclose

these names. This failure to reveal the identity of the

recipients of the scholarship awards beginning in 2014 allows

the inference that it was done for the purpose of impeding any

discovery of improper awards. Whether intended or not, this

failure to disclose the recipients had the effect of preventing

the identification of improper awards without judicial

intervention.

"13. Further, the Attorney General and trustees

previously announced to the court a proposed settlement 'in

principle,' but no terms of any proposed final settlement have

been filed with or otherwise tendered to the court. A

determination by a Special Fiduciary of the extent of the

trustees' breaches of duty would help inform the court's

decision whether to approve any proposed settlement or order

other relief, as well as prevent any additional breaches in the

interim.

"14. An appointment of a Special Fiduciary rather than

the referral to a Special Master would also best serve to

protect the sensitive financial and personal information of the

scholarship applicants, recipients, and their families, as these

records would remain in the possession of the Trust.

"IT IS THEREFORE ORDERED:

"15. James C. White, Sr., CPA, of Birmingham,

Alabama, … is hereby appointed as a Special Fiduciary to the

Mabel Amos Memorial Fund pending the final outcome of the

court's decision as to whether to remove the current trustees.

15

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"16. As a temporary Special Fiduciary, Mr. White shall

take possession of the property of the Trust, including its

books and records, and administer the Trust until further

order of the court. Mr. White shall have all the authorities and

powers that the Trust instrument provides to the current

trustees, and he shall be compensated by the Trust in an

amount reasonable under the circumstances, subject to the

court's review and approval.

"17. The temporary Special Fiduciary is directed to audit

the books and records of the Trust to determine the monetary

amount, if any, of all disbursements made by the trustees,

including both scholarships and other disbursements, that

were in violation of the terms of the Trust. This accounting

shall also include the amount of net income, if any, the

trustees may have improperly diverted to the Trust's

principal instead of using these funds to provide scholarships

as required in accordance with Article 5 of the Trust. This

accounting shall further include the amount of fees, if any,

charged by the current administrative trustee, Regions Bank,

that were not 'reasonable under the circumstances,' as

required by Ala. Code [1975, §] 19-3B-708(a). If the Special

Fiduciary determines that there were trustee fees charged to

the Trust that were not reasonable under the circumstances,

he shall set forth the methodology he used to make that

determination, and the amount considered unreasonable. The

temporary Special Fiduciary shall also recommend to this

court whether the breaches, if any, discovered by his

accounting constitute a 'serious breach of trust' within the

meaning of Ala. Code [1975, §] 19-3B-706(b)(1), making them

of sufficient gravity to remove the trustees.

"18. The temporary Special Fiduciary shall commence

his duties forthwith and shall submit his accounting back to

this court within 90 days, unless this deadline is extended by

this court.

16

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"19. Upon receipt of the temporary Special Fiduciary's

accounting, this court shall conduct further proceedings to

determine if the current trustees of the Trust should be

removed and whether the court should order the trustees to

make monetary recompense to the Trust, and whether

attorney fees and other relief are appropriate.

"_______________

"1According to the Trust's Form 990-PF's, the Trust in

2012 distributed funds to LBW Jr. College, Troy University,

and the University of Alabama (UA), and in 2013 made

distributions to UA and the Auburn University Foundation

(AUF) for 'general support.' Article V, part B of the Trust

requires that the income of the Trust must be used only '… to

provide scholarships for deserving young men and women of

this State….' The Trust in each year from 2004-2008

distributed funds to the 'general scholarship fund' of AUF.

Commingling Mabel Amos Trust funds with a university's

general scholarship fund makes it impossible to know who

received Mabel Amos Trust scholarships and whether these

individuals met the specific criteria for an award of a

scholarship required by the Trust. Similar distributions

appear to have been made to UA and AUF from 2014-2016,

and again to AUF in 2019. In 2018, the Trust distributed

funds to the Crimson Tide Foundation to create an endowed

athletic scholarship at UA, and in 2019 and again in 2021

distributed additional funds directly to UA for this athletic

scholarship. Under Article V, part C of the Trust, scholarships

must be awarded only to 'young men and women of the state,'

who are selected by the Board established by the Trust.

Individuals who are not Board Members of the Trust are not

allowed to determine the recipients of the scholarships. When

combined with the funds distributed for 'general support'

purposes, these distributions appear to amount to $374,157

(as best as the court can ascertain) and are in addition to the

$135,000 awarded to the children of trustee Thomas

Albritton.

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"….

"4The Trust's Form 990-PF's contain information

concerning Regions' trustee fees. Other than being able to

observe that the fees skyrocketed after the Trust became

wealthy, it is impossible to determine the basis that Regions

used in making these charges, as there appears to be no

consistent basis on either an hourly rate or a percentage of

net assets that Regions used in charging its fees to the Trust."

(Some footnotes omitted; capitalization in original.)

On August 23, 2024, this Court overruled the application for

rehearing that had been filed in Ex parte Marshall and issued a

certificate of judgment in that case. On August 28, 2024, Marshall

petitioned this Court, seeking a writ of mandamus ordering the circuit

court to vacate its August 8, 2024, order appointing a special fiduciary.

Standard of Review

The applicable standard of review in this case is the same as it was

in Ex parte Marshall, __ So. 3d at__:

"This Court set forth the following applicable standard

of review in Ex parte Alabama State Personnel Board, 54 So.

3d 886, 891 (Ala. 2010):

" ' " ' "Mandamus is a drastic and

extraordinary writ, to be issued only

where there is (1) a clear legal right in

the petitioner to the order sought; (2)

an imperative duty upon the

18

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respondent to perform, accompanied by

a refusal to do so; (3) the lack of another

adequate remedy; and (4) properly

invoked jurisdiction of the court." ' "

" 'Ex parte Novartis Pharm. Corp., 975 So. 2d 297,

299 (Ala. 2007) (quoting Ex parte Perfection

Siding, Inc., 882 So. 2d 307, 309-10 (Ala. 2003),

quoting in turn Ex parte Integon Corp., 672 So. 2d

497, 499 (Ala. 1995)).

" ' " ' "In cases involving the exercise of

discretion by an inferior court, [the writ of]

mandamus may issue to compel the exercise of

that discretion. It may not, however, issue to

control or review the exercise of discretion, except

in a case [where the trial court has exceeded its

discretion]." ' " Ex parte Monsanto Co., 794 So. 2d

350, 351-52 (Ala. 2001) (quoting Ex parte Auto-

Owners Ins. Co., 548 So. 2d 1029, 1030 (Ala. 1989),

quoting in turn Ex parte Edgar, 543 So. 2d 682,

685 (Ala. 1989)).' "

Discussion

First, Marshall argues that the circuit court's August 8, 2024, order

appointing a special fiduciary is void for lack of jurisdiction because,

Marshall argues, the cases were still pending before this Court at the

time that the circuit court entered that order. As noted above, our

opinion in Ex parte Marshall was released on May 31, 2024, and Lindsey

filed an application for rehearing with this Court on June 3, 2024. The

circuit court entered its August 8, 2024, order while Lindsey's application

19

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for rehearing was pending before this Court. This Court then overruled

Lindsey's application for rehearing on August 23, 2024. Marshall argues

that jurisdiction over the underlying cases rested solely with this Court

while Lindsey's application for rehearing was pending and that the

circuit court "had no jurisdiction" to enter the August 8, 2024, order

appointing a special fiduciary until this Court ruled on Lindsey's

application. Marshall is incorrect.

Marshall's argument, which relies upon Gordon v. State, 710 So. 2d

943 (Ala. Crim. App. 1998), is based on the following general principle of

law pertaining to jurisdiction as set forth in Gordon:

" ' "The rule has been stated many times that

when an appeal is taken the trial court may

proceed only in matters entirely collateral to that

part of the case which has been taken up by the

appeal, but can do nothing in respect to any matter

or question which is involved in the appeal, and

which may be adjudged by the appellate court....

This is an application of the general rule that

jurisdiction of a case can be in only one court at a

time.' Foster v. Greer & Sons, Inc., 446 So. 2d 605,

608 (Ala. 1984) (citations to authority omitted);

Sunshine Homes, Inc. v. Newton, 443 So. 2d 921,

924 (Ala. 1983). "After an appeal is taken, the

court whence it came loses control of the subject

matter or question in the case made the subject of

the order, judgment, or decree from which the

appeal is taken. Action in said cause should be

suspended in the trial court until the appeal is

20

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effectively abandoned, dismissed, or decided."

Lewis v. Martin, 210 Ala. 401, 409, 98 So. 635

(1923); Ex parte Pugh, 441 So. 2d 126, 127 (Ala.

1983). "The basic principle is that a case should not

be pending in a lower and an appellate court at the

same time." Walker v. Alabama Public Service

Commission, 292 Ala. 548, 552, 297 So. 2d 370

(1974).

" '....

" 'Because the circuit court was without

jurisdiction, its judgment is null and void and will

not support an appeal. Jones v. Sears Roebuck &

Co., 342 So. 2d 16, 17 (Ala. 1977). Therefore, this

appeal must be dismissed. See State v. Crook, 123

Ala. 657, 27 So. 334 (1899).'

"[McKinney v. State,] 549 So. 2d [166,] 167-68 [(Ala. Crim.

App. 1989)] (footnote omitted)."

710 So. 2d at 945.

That general rule, however, applies when an appeal is taken from

a lower court to an appellate court; it does not apply when, as here, a

petition for a writ of mandamus is filed with an appellate court seeking

review of an interlocutory order entered by a lower court. In Ex parte

Marshall County Department of Human Resources, 252 So. 3d 1105,

1107 n.2 (Ala. Civ. App. 2017), the Court of Civil Appeals provided the

following explanation of the effect on a lower court's jurisdiction when a

21

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notice of appeal is filed versus when a petition for a writ of mandamus is

filed:

"Indeed, the filing of a notice of appeal divests the trial

court of jurisdiction over an action. Portis v. Alabama State

Tenure Comm'n, 863 So. 2d 1125, 1126 (Ala. Civ. App. 2003)

(quoting Ward v. Ullery, 412 So. 2d 796, 797 (Ala. Civ. App.

1982))('It is well settled that "[o]nce an appeal is taken, the

trial court loses jurisdiction to act except in matters entirely

collateral to the appeal." '); see also Veteto v. Yocum, 792 So.

2d 1117, 1119 (Ala. Civ. App. 2001) (explaining that, once an

appeal is taken, a trial court may not enter a judgment or

order in an action until such time as the appellate court issues

its certificate of judgment). However, the filing of a petition

for the writ of mandamus, unlike the filing of a notice of

appeal, does not remove jurisdiction over the underlying

action from the trial court. State v. Webber, 892 So. 2d 869,

871 (Ala. 2004) ('The filing of a petition for a writ of

mandamus against a trial judge does not divest the trial court

of jurisdiction, stay the case, or toll the running of any period

for obeying an order or perfecting a filing in the case.')."

(Emphasis added.) Marshall's argument is not persuasive; the circuit

court had jurisdiction to enter its August 8, 2024, order appointing the

special fiduciary because the filing of Marshall's previous mandamus

petitions with this Court did not divest the circuit court of jurisdiction

over the underlying cases.

As another preliminary consideration, we note that the parties have

raised the issue of standing before the circuit court and before this Court,

as they did in Ex parte Marshall. Of course, in Ex parte Marshall, we

22

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explained that the circuit court has subject-matter jurisdiction over the

underlying consolidated cases because "Marshall properly invoked the

jurisdiction of the circuit court by filing a complaint in the consolidated

cases below, and the circuit court has properly assumed control of the

trust." __ So. 3d at ___. Now, the parties have again presented

arguments concerning whether Carmack, Leigh, and Lindsey have

"standing" to assert their claims against Regions Bank and the board

members. We decline to answer that question for the same reason as

before:

"We acknowledge that the parties have also raised

arguments as to the 'standing' of Carmack, Leigh, and

Lindsey to assert their claims against Regions Bank and the

board members. We need not address that question, however,

because we have already determined that the circuit court has

jurisdiction over the cases below based on Marshall's

pleadings, and, thus, we are certain that we have jurisdiction

to consider Marshall's mandamus petitions pertaining to the

circuit court's order appointing a special master. In other

words, because the circuit court had subject-matter

jurisdiction over the cases at the time that it entered its

November 20, 2023, amended order appointing a special

master, that order was not void and, thus, is capable of

supporting Marshall's mandamus petitions. Cf. Brooks v.

Carter, 390 So. 3d 1098, 1102 (Ala. Civ. App. 2023)('[W]hen a

circuit court without subject-matter jurisdiction purports to

enter any judgment other than one dismissing the action for

lack of jurisdiction, that judgment is void and will not support

an appeal. See Singleton v. Graham, 716 So. 2d 224, 226 (Ala.

Civ. App. 1998). Instead, that judgment must be vacated or

23

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set aside and the appeal must be dismissed. Singleton, supra;

Bernals[, Inc. v. Kessler-Greystone, LLC, 70 So. 3d 315, 319

(Ala. 2011)].'). The circuit court may still consider the

arguments raised by the parties related to whether Carmack,

Leigh, and Lindsey have 'standing' or if they have failed to

state a claim. See Ex parte BAC Home Loans Servicing, LP,

159 So. 3d 31 (Ala. 2013)(discussing the difference between

standing and whether a party has failed to properly state a

cause of action)."

Ex parte Marshall, __ So. 3d at __ n.1. The circuit court has jurisdiction

over the cases below based on Marshall's pleadings, and, thus, we need

not decide the issue of "standing" as to Carmack, Leigh, or Lindsey in

order to decide the mandamus petition currently before us.

Next, we will consider the merits of Marshall's arguments

pertaining to whether the circuit court exceeded its discretion in

appointing White as a special fiduciary in these consolidated cases. As

noted above, the circuit court initially appointed a special master in these

cases under Rule 53 and referred the entirety of the cases to him under

Rule 53(b). Pertinent to the current mandamus petition, however, the

circuit court appointed White as a special fiduciary under § 19-3B-1001.

In his petition before this Court, Marshall argues that, even though the

circuit court purported to appoint White as a special fiduciary under §

19-3B-1001, "the appointment is nothing more than the warmed-over

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[Rule 53] special master order already stricken by this Court." Marshall's

petition at 4. Marshall argues that the circuit court has "appoint[ed] …

White … as special master again …." Id. at 3 (emphasis in original).

Based on that premise -- that the circuit court's present order is one

appointing a special master under Rule 53 and referring the case to the

special master thereunder -- Marshall argues that this Court's decision

in Ex parte Marshall controls and, based thereon, that the circuit court

exceeded its discretion in appointing White as a special master under

Rule 53.

As noted, the entire premise of Marshall's argument is that the

circuit court's present order is an order appointing White as a special

master under Rule 53 and a referral of the entirety of the cases to him.

We do not agree entirely with that premise. Marshall's argument glosses

over the fact that there is a distinction between an appointment of a

special master under Rule 53 and an appointment of a special fiduciary

under § 19-3B-1001. Marshall's argument does not delve into any such

distinction and, unfortunately, provides only a passing citation to § 19-

3B-1001, offering no discussion or analysis of that statute or how it

25

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compares and/or relates to Rule 53. Marshall's argument is lacking in

that regard.

Under Alabama law, there is a distinction between the appointment

of a special master under Rule 53 and the appointment of a special

fiduciary under § 19-3B-1001. First, we will consider the purpose and

application of Rule 53, which we discussed extensively in Ex parte

Marshall. In that case, Marshall convincingly argued that the circuit

court had exceeded its discretion by appointing a special master and

referring the entirety of the cases to him. We addressed Marshall's

argument pertaining to Rule 53 as follows:

"In Ex parte Alabama State Personnel Board, 54 So. 3d

[886,] 892-93 [(Ala. 2010)], this Court set forth the following

relevant law concerning Rule 53:

" 'Rule 53, Ala. R. Civ. P., provides that a

court may appoint a special master. Rule 53(b),

Ala. R. Civ. P., sets out the occasions upon which

the appointment of a special master is appropriate

and provides as follows:

" ' "(b) Reference. A reference to a

master shall be the exception and not

the rule. In actions to be tried by a jury,

a reference shall be made only when

the issues are complicated; in actions to

be tried without a jury, save in matters

of account and of difficult computation

of damages, a reference shall be made

26

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only upon a showing that some

exceptional condition requires it."

" 'The appointment of a special master lies

within the sound discretion of the trial court, and

its decision to appoint a special master should not

be reversed unless the trial court clearly exceeds

that discretion. Hall v. Mazzone, 540 So. 2d 1353

(Ala. 1988). In a jury trial, a case should be

referred to a special master only if the issues are

"complicated"; those matters to be tried without a

jury are to be referred to a special master only

upon finding of "some exceptional condition"

requiring such referral, unless a claim requires an

accounting or a difficult computation of damages.

We emphasize the sentence in Rule 53(b) that

precedes the applicable standard (jury or nonjury)

that tells us that the reference to a special master

is the exception not the rule. "Because of the

increased costs, likelihood of delay, and possible

lack of confidence in the outcome, the power to

order a reference is to be sparingly exercised. See

Adventures in Good Eating, Inc. v. Best Places to

Eat, Inc., 131 F.2d 809, 815 (7th Cir. 1942)."

Committee Comments on 1973 Adoption of Rule

53.'

"As is clear from the above-quoted legal principles,

different standards apply in determining the appropriateness

of referring to a special master actions to be tried with a jury,

actions to be tried without a jury, and actions seeking an

accounting. Accordingly, to properly determine if the circuit

court's referral of all the matters in these cases to a special

master was appropriate, we must first determine whether the

cases were to be tried by a jury or not, and we must also

determine whether an accounting has been requested. We can

then analyze the circuit court's referral under the applicable

standards.

27

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"… Based on our review of the pleadings and the parties'

assertions before this Court, it appears that the actions below

are to be tried without a jury. The claims asserted by Marshall

against Regions Bank and the board members in his

complaint alleged breach of fiduciary duties, unjust

enrichment, negligence, wantonness, and violation Alabama's

Uniform Trust Code. Therefore, insofar as the circuit court

referred to the special master those matters to be tried

without a jury, 'those matters ... are to be referred to a special

master only upon finding of "some exceptional condition"

requiring such referral ....' Ex parte Alabama State Pers. Bd.,

54 So. 3d at 892-93.

"In the present cases, the circuit court did not indicate

that 'some exceptional condition' required the referral of the

entire cases to a special master. In fact, the circuit court's

order makes no mention of the necessity of such a finding to

justify the referral of the entire cases to a special master. The

allegations in Marshall's complaint are straightforward and

easily understandable. Our review of the materials submitted

by the parties do not indicate that any such 'exceptional

condition' exists in these cases to support the circuit court's

referral of the entire cases to a special master. There appears

to be no basis to support the circuit court's referral of the

cases, including, among other things, motions to dismiss and

determinations of liability, to a special master. Accordingly,

we conclude that the circuit court exceeded its authority in

referring the entire cases to a special master."

Ex parte Marshall, __ So. 3d at __.

As is seen from the above-quoted portion of Ex parte Marshall, the

referral of a case to a special master under Rule 53(b) has specific

requirements that must be considered by a court in so referring a case.

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According to the Committee Comments on 1973 Adoption of Rule 53, Rule

53 is based on the federal version of the rule and, with certain exceptions

not relevant here, "is identical to Federal Rule 53." In their treatise on

federal practice and procedure, Charles Alan Wright and Arthur R.

Miller state the following concerning the purpose of Rule 53:

"In the federal courts, a master is appointed to help the

district court only in a case in which particular assistance is

needed. Thus, the appointment and activities of a master are

only for the purpose of aiding the trial judge to obtain the facts

and arrive at a correct result in a litigation pending before his

or her court, particularly with regard to complicated matters.

Because the use of masters is expensive and frequently leads

to delay, reference to a master is justified only in very rare

cases. The master is only to aid the trial judge in the

performance of specific judicial duties as they may arise in a

case. A master does not displace the court. However, a master

appointed under Rule 53 may be considered an arm of the

court in some contexts."

9C Charles Alan Wright & Arthur R. Miller, Federal Practice &

Procedure § 2601 (3d ed. 2008 & 2023 Supp.) (footnotes omitted).

Having discussed Rule 53, we now turn to a brief discussion of § 19-

3B-1001, which contains entirely different language from that used in

Rule 53 and was passed by the legislature for different purposes. Section

19-3B-1001 states:

"(a) A violation by a trustee of a duty the trustee owes to

a beneficiary is a breach of trust.

29

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"(b) To remedy a breach of trust that has occurred or

may occur, the court may:

"(1) compel the trustee to perform the

trustee's duties;

"(2) enjoin the trustee from committing a

breach of trust;

"(3) compel the trustee to redress a breach of

trust by paying money, restoring property, or other

means;

"(4) order a trustee to account;

"(5) appoint a special fiduciary to take

possession of the trust property and administer

the trust;

"(6) suspend the trustee;

"(7) remove the trustee as provided in

Section 19-3B-706[, Ala. Code 1975];

"(8) reduce or deny compensation to the

trustee;

"(9) subject to Section 19-3B-1012, [Ala. Code

1975,] void an act of the trustee, impose a lien or a

constructive trust on trust property, or trace trust

property wrongfully disposed of and recover the

property or its proceeds; or

"(10) order any other appropriate relief."

30

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(Emphasis added.) As is apparent from the plain language of § 19-3B-

1001, a circuit court has the authority, when a breach of trust has

occurred or may occur, to "order a trustee to account" and to "appoint a

special fiduciary to take possession of the trust property and administer

the trust," among other things. The Uniform Comment to § 19-3B-1001

states, in pertinent part:

"Subsection (b)(5) makes explicit the court's authority to

appoint a special fiduciary, also sometimes referred to as a

receiver. See Restatement (Second) Of Trusts § 199(d) (1959).

The authority of the court to appoint a special fiduciary is not

limited to actions alleging breach of trust but is available

whenever the court, exercising its equitable jurisdiction,

concludes that an appointment would promote administration

of the trust. See Section 704(d) (special fiduciary may be

appointed whenever court considers such appointment

necessary for administration)."

Comment d. to Restatement (Second) of Trusts § 199 (Am. L. Inst. 1959),

referenced in the Uniform Comment quoted above, provides the following

commentary on the discretion a circuit court has to appoint a special

fiduciary to administer a trust pending litigation concerning the removal

of a trustee:

"A [special fiduciary] will be appointed by the court to take

possession of the subject matter of the trust or a part thereof

and to administer the trust in respect thereto, if this is

necessary for the protection of the interest of the beneficiary.

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"If proceedings are brought for the removal of the

trustee and it appears necessary or proper during the course

of the proceedings that the trust should be administered

under the supervision of the court, the court may appoint a

[special fiduciary] until it is determined whether the trustee

should be removed and a new trustee appointed.[1] The

1Although Alabama precedent is not very developed in this area of

the law, the idea that a special fiduciary may be appointed before the

circuit court's final determination that a breach of the trust has occurred

is well established under the Uniform Trust Code, which Alabama has

adopted. The Law of Trusts and Trustees states:

"Temporary removal may also prove useful. The court's

power to suspend may be appropriate where an investigation

of the grounds of removal takes considerable time and there

is evidence indicating a danger of waste or misappropriation

pending the proceedings.3 Under these circumstances courts

often appoint a receiver pendente lite to manage the trust

affairs,4 and in so doing necessarily suspend the trustee. The

court's authority in equity to appoint a receiver does not

depend on allegations of breach of trust, and can be

appropriate whenever the court determines that a receiver is

necessary for the proper administration of the trust.6

"The Uniform Trust Code codifies this equitable

authority and provides for the appointment of a 'special

fiduciary to take possession of the trust property and

administer the trust. …'7 The Uniform Trust Code also

provides that a court can 'suspend the trustee.'8

"_______________

"3The court has power to appoint a trustee ad litem for

the conduct of litigation in which the trustees are engaged,

and thus in effect remove them as to that matter when there

is conflict between their personal and representative interests

32

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in the litigation. Selig v. Morrison, 230 Ark. 216, 321 S.W.2d

769 (1959), citing text, §§ 529, 543.

"A court of equity may forbid a trustee to act under a

trust, preliminary to the appointment of a successor. Enochs

v. Mississippi Tower Bldg., 210 Miss. 676, 50 So. 2d 551

(1951).

"Where litigation is pending regarding the appointment

of a successor trustee, the court may appoint a trustee

pendente lite to act until the litigation is concluded. Bakewell

v. Mercantile Trust Co., 319 S.W.2d 600 (Mo. 1958).

"Trial court's suspension of co-trustee upheld because

the record showed that the co-trustee had aggressively

pursued her own interests in the proceeds of the trusts and

estate, to the apparent neglect of other designated

beneficiaries, thus evincing a clear conflict of interest. In re

Eisenberg, 93 A.D.3d 413, 939 N.Y.S.2d 407 (1st Dep't 2012).

"4Wilmer v. Atlanta & R. Air-Line R. Co., C.C. Ga. 1874,

30 Fed. Cas. 73; Janeway v. Green, 1863, 16 Abb. Prac., N.Y.,

215; North Carolina R. Co. v. Wilson, 81 N.C. 223 … (1879);

Cameron v. White, 1927 OK 293, 128 Okla. 251, 262 P. 664

(1927); Clay v. Selah Valley Irr. Co., 14 Wash. 543, 45 P. 141

(1896); McCandless v. Warner, 1885, 26 W. Va. 754; Lamp v.

Homestead Bldg. Ass'n, 62 W. Va. 56, 57 S.E. 249 (1907).

"The appointment of a receiver is ancillary to an action

or proceeding and there is no right to a receivership in an

independent suit. Associated Creditors' Agency v. Wong, 216

Cal. App. 2d 61, 30 Cal. Rptr. 705 (1st Dist. 1963).

"And see Jennings v. Fidelity & Columbia Trust Co., 240

Ky. 24, 41 S.W.2d 537 (1931) (appointing special receiver

pending reorganization of trust company trustee).

33

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"Such a receiver may be held to the duties of a trustee

for the beneficiaries of the trust (and therefore be subject to

suit for breach of duty) rather than being considered an officer

of the court (and therefore immune from such suits). Alpert v.

Gerstner, 232 S.W.3d 117 (Tex. App. Houston 1st Dist. 2006).

"In a suit by the residuary beneficiaries alleging

mismanagement and seeking removal of the life tenant-

trustee, the trial court did not abuse its discretion in

appointing a temporary receiver to take charge of the trust

property. There was evidence that the property would be lost,

destroyed or materially injured unless a receiver were

appointed, and that ultimate recovery by the applicants was

probable. Pfeiffer v. Pfeiffer, 394 S.W.2d 679 (Tex. Civ. App.

Houston 1965), writ dismissed, (Feb. 9, 1966).

"The incapacity of the sole trustee and danger to the

trust assets may justify a court in appointing a receiver of the

property of a business trust. Looney v. Doss, 189 S.W.2d 207

(Tex. Civ. App. Fort Worth 1945).

"….

"6See Restatement Second, Trusts § 199(d). The

Comment to § 199(d) explains: 'The receivership will be

terminated by the court when it is determined by the court

that the trustee may properly continue as trustee, or when a

new trustee is appointed and the title to the trust property is

vested in him.'

"7Unif. Trust Code § 1001(b)(5). See also Unif. Trust

Code 704(e) (providing that 'the court may appoint an

additional trustee or special fiduciary whenever the court

considers the appointment necessary for the administration

of the trust.')[.]

"8Unif. Trust Code § 1001(b)(6). …"

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[appointment of a special fiduciary] will be terminated by the

court when it is determined by the court that the trustee may

properly continue as trustee, or when a new trustee is

appointed and the title to the trust property is vested in him."

As noted by this Court in Calhoun v. King, 5 Ala. 523, 525 (1843), one of

the purposes for the appointment of a special fiduciary is to protect the

assets of the trust: "It is an established rule of the court of chancery, that

where a trust fund is in danger of being wasted or misapplied, it will

interfere, on the application of those interested in the fund, and by the

appointment of a receiver, or in some other mode, secure the fund from

loss."

Based on the above discussion, it is apparent that an appointment

of a special master under Rule 53 is distinct from the appointment of a

special fiduciary under § 19-3B-1001. A special master serves as an aid

to the circuit court to obtain facts necessary for the circuit court to reach

a correct result in complex litigation before it. A special fiduciary, on the

other hand, serves to protect the assets of a trust from mismanagement

and waste by the trustee pending litigation concerning the trust, among

Susan N. Gary, George Gleason Bogert & George Taylor Bogert, The Law

of Trusts and Trustees § 528 (3d ed. 2019) (one footnote omitted).

35

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other things. Rule 53 and § 19-3B-1001 provide a circuit court with

distinct tools that may be utilized under different circumstances.

Additionally, Marshall himself has argued in these proceedings

that a special master appointed under Rule 53 is distinct from a special

fiduciary appointed under § 19-3B-1001. In his reply brief filed in Ex

parte Marshall, Marshall, in arguing against the idea that he was

estopped from arguing that the circuit court had erred in referring the

entirety of the cases to a special master because he had previously

requested the appointment of a special fiduciary, expressly argued the

following:

"[Marshall] did not request a special master in prior

pleadings. A special fiduciary was requested. The role of a

special master differs from that of a special fiduciary. The

parties without standing try to skirt the distinction by

arguing that the special master 'is essentially such relief

[Marshall] requested.' Answer, p. 25. But that is not true.

[Marshall] did not request a special master and CPA be

appointed, nor did [Marshall] request that the trial court

abdicate its powers to the master and CPA. The fiduciary

requested by [Marshall] is a temporary trustee of a trust --

with the duties that inhere in trustees -- not a Rule 53 special

master who enjoys judicial immunities. And the trial court

never appointed a special fiduciary; [Marshall] did not prevail

on this point."

Marshall's reply brief in Ex parte Marshall at 11.

36

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Having distinguished the appointment of a special master under

Rule 53 from the appointment of a special fiduciary under § 19-3B-1001,

we must now examine the August 8, 2024, order that the circuit court

entered, which is set forth above, to determine if Marshall is correct in

characterizing the entirety of the circuit court's order as one appointing

a special master under Rule 53. The circuit court, citing § 19-3B-1001,

appointed White as a special fiduciary and ordered that White "take

possession of the property of the Trust, including its books and records,

and administer the Trust until further order of the court." The circuit

court had before it pleadings alleging that Regions Bank had breached

the terms of the trust (Marshall, himself, alleged that Regions Bank had

breached the terms of the trust in various respects) and documentary

evidence indicating that Regions Bank had made distributions from the

trust that are in violation of the terms of the trust. 2 Accordingly, the

2We note that Marshall makes the following argument that the

circuit court based its judgment on allegations alone:

"It is important to note also that the New Special Master

Order is premised on allegations only. The New Special

Master Order sets forth numerous 'findings of fact.' They are

mere conclusory allegations, not facts. There have been no

evidentiary hearings. The Court has taken no testimony.

There is nothing more to say on the point, other than to iterate

37

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circuit court determined that the appointment of a special fiduciary was

necessary to protect the assets of the trust pending the litigation

concerning the trust. Such an appointment is clearly one appointing a

special fiduciary under § 19-3B-1001 for the purpose of protecting the

assets of the trust from mismanagement; it is not, as Marshall alleges, a

"warmed-over [Rule 53] special master order …." Marshall's petition at

4. Therefore, as it relates to the appointment of White as a special

fiduciary, we reject Marshall's premise that the circuit court's order is

that if allegations were facts courts could dispense with trials

-- and witnesses for that matter -- and evidence too. Also,

ordering the transfer of the assets of the trust based on

allegations creates obvious due process problems that require

a prompt remedy by the Court."

Marshall's petition at 13. Marshall's argument ignores the fact that the

parties have presented documentary evidence to the circuit court and

that the circuit court stated that it was taking judicial notice under Rule

201, Ala. R. Evid., of the tax records presented to it. The circuit court

based its order appointing a special fiduciary on the tax records, which,

according to the circuit court's order, demonstrates that some of the

distributions made by Regions Bank violated the terms of the trust;

Marshall does not dispute that aspect of the circuit court's order.

Marshall also does not argue that the circuit court committed error in

taking judicial notice of certain facts, and he cites no authority in support

of his argument. Therefore, we need not consider Marshall's argument.

See White Sands Grp., L.L.C. v. PRS II, LLC, 998 So. 2d 1042, 1058 (Ala.

2008)("Rule 28(a)(10)[, Ala. R. App. P.,] requires that arguments in briefs

contain discussions of facts and relevant legal authorities that support

the party's position. If they do not, the arguments are waived.").

38

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one appointing a special master under Rule 53. Accordingly, Marshall's

argument pertaining to the appointment of White as a special fiduciary

under § 19-3B-1001 for the purpose of taking possession of the trust

property and administering the trust fails; the circuit court had before it

evidence indicating that Regions Bank had breached the terms of the

trust, and the circuit court and did not exceed its discretion in appointing

White as a special fiduciary to take possession of the trust property and

administer the trust.3

3We note that we stated the following in Ex parte Marshall:

"In their respective answers filed with this Court,

Carmack and Leigh and Lindsey argue that, even if it

exceeded its discretion by referring all the matters in these

cases to a special master under Rule 53, the circuit court had

the authority to appoint a special master under § 19-3B-201,

§ 19-3B-706, and § 19-3B-1001, Ala. Code 1975. The text of

those statutes does not mention a special master, but those

statutes do give the circuit court authority to oversee the

administration of a trust, which, presumably, includes the

appointment of a special master. But there is nothing in those

statutes indicating that the appointment of a special master

may be done independent of Rule 53. Those statutes generally

empower a circuit court to oversee the administration of a

trust, which would include appointing a special master in

appropriate cases, but Carmack, Leigh, and Lindsey have not

cited any authority indicating that such an appointment need

not comply with Rule 53. Their argument is not persuasive."

39

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Moreover, as set forth above, Marshall himself requested earlier in

these proceedings that a special fiduciary be appointed. The circuit court

clearly had the discretion under § 19-3B-1001 to take such action, which

Marshall requested. Marshall cannot now, after requesting that the

circuit court appoint a special fiduciary, plausibly argue that the circuit

court erred in doing that very thing. See Mobile Infirmary Med. Ctr. v.

Hodgen, 884 So. 2d 801, 808 (Ala. 2003) ("The law is well settled that a

party may not induce an error by the trial court and then attempt to win

a reversal based on that error. 'A party may not predicate an argument

for reversal on "invited error," that is, "error into which he has led or

lulled the trial court." ' Atkins v. Lee, 603 So. 2d 937, 945 (Ala.

1992)(quoting Dixie Highway Express, Inc. v. Southern Ry., 286 Ala. 646,

651, 244 So. 2d 591, 595 (1971)). 'That doctrine [of invited error] provides

__ So. 3d at __. As is evident from the above-quoted portion of Ex parte

Marshall, Carmack, Leigh, and Lindsey argued that the circuit court had

appointed a special master under § 19-3B-1001, they did not request this

Court to consider the circuit court's order as one appointing a special

fiduciary. As discussed extensively above, a special master is distinct

from a special fiduciary under Alabama law. We did not have before us

in Ex parte Marshall an argument that the circuit court had appointed a

special fiduciary under § 19-3B-1001(b)(5), and, thus, nothing in that

decision prohibits us from now determining that the circuit court did not

exceed its discretion in appointing a special fiduciary.

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that a party may not complain of error into which he has led the court.'

Ex parte King, 643 So. 2d 1364, 1366 (Ala. 1993). 'A party cannot win a

reversal on an error that party has invited the trial court to commit.' Neal

v. Neal, 856 So. 2d 766, 784 (Ala. 2002). See also Liberty Nat'l Life Ins.

Co. v. Beasley, 466 So. 2d 935, 937 (Ala. 1985); State Farm Mut. Auto.

Ins. Co. v. Humphres, 293 Ala. 413, 418, 304 So. 2d 573, 577 (1974).").

Therefore, for this reason as well, Marshall has not demonstrated that

he has a clear legal right to have set aside the circuit court's order

appointing White as a special fiduciary to take possession of and

administer the trust; that aspect of the circuit court's order must stand.

However, the circuit court also ordered that the special fiduciary

conduct an accounting that detailed all the ways in which Regions Bank

had breached the terms of the trust. The circuit court's order states:

"17. The temporary Special Fiduciary is directed to audit

the books and records of the Trust to determine the monetary

amount, if any, of all disbursements made by the trustees,

including both scholarships and other disbursements, that

were in violation of the terms of the Trust. This accounting

shall also include the amount of net income, if any, the

trustees may have improperly diverted to the Trust's

principal instead of using these funds to provide scholarships

as required in accordance with Article 5 of the Trust. This

accounting shall further include the amount of fees, if any,

charged by the current administrative trustee, Regions Bank,

that were not 'reasonable under the circumstances,' as

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required by Ala. Code [1975, §] 19-3B-708(a). If the Special

Fiduciary determines that there were trustee fees charged to

the Trust that were not reasonable under the circumstances,

he shall set forth the methodology he used to make that

determination, and the amount considered unreasonable. The

temporary Special Fiduciary shall also recommend to this

court whether the breaches, if any, discovered by his

accounting constitute a 'serious breach of trust' within the

meaning of Ala. Code [1975, §] 19-3B-706(b)(1), making them

of sufficient gravity to remove the trustees."

Of course, § 19-3B-1001(b)(4) gives the circuit court the discretion to

order a trustee to give an account of a trust. The above-quoted portion of

the circuit court's order, however, goes far beyond directing White to give

a general accounting of the trust. The circuit court's order requires White

to make factual findings and legal determinations, going so far as to task

White, who is an accountant, to interpret § 19-3B-706(b)(1), Ala. Code

1975, and to determine if Regions Bank's conduct violated that statute.

Section 19-3B-1001(b)(4) does not give a circuit court the authority to

endow a special fiduciary with its judicial power to make factual findings

and legal determinations. Marshall is correct in arguing that the circuit

court exceeded its authority in that regard, and we direct the circuit court

to vacate that portion of its order; § 19-3B-1001(b)(4) does not give the

circuit court the discretion to cloak a special fiduciary with the authority

to make the dispositive legal determinations in a case.

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It is that aspect of the circuit court's order -- appointing White to

make factual findings and dispositive legal determinations -- that may

be, as Marshall argues, a "warmed-over [Rule 53] special master order

…." Marshall's petition at 4. That is so because, although § 19-3B-1001

does not give the circuit court discretion to appoint White to aid it in

obtaining the facts necessary to arrive at a correct result in the litigation

pending before it, Rule 53 does. However, as we stated in Ex parte

Marshall, a broad and unsubstantiated referral to a special master to

make the dispositive legal determinations in a case, such as the circuit

court has essentially done here, is an impermissible abdication of the

circuit court's judicial function. In Ex parte Marshall, we stated:

"In Ex parte Alabama State Personnel Board, [54 So. 3d

886 (Ala. 2010),] this Court, relying upon La Buy v. Howes

Leather Co., 352 U.S. 249 (1957), as an analogous case,

described a broad and unsubstantiated referral to a special

master similar to the one in these cases, as follows:

" 'In La Buy v. Howes Leather Co., 352 U.S.

[249,] 256 [(1957)], the Supreme Court affirmed

the appellate court's issuance of a writ of

mandamus compelling the district court to vacate

its order of reference of two complex antitrust

cases to a special master for trial. The Court

stated:

" ' "[The trial judge] referred both suits

to a master on the general issue.

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Furthermore, neither the existence of

the alleged conspiracy nor the question

of liability vel non had been determined

in either case. These issues, as well as

the damages, if any, and the question

concerning the issuance of an

injunction, were likewise included in

the references. Under all of the

circumstances, we believe the Court of

Appeals was justified in finding the

orders of reference were an abuse of the

petitioner's power under Rule 53(b)[,

Fed. R. Civ. P.]. They amounted to little

less than an abdication of the judicial

function depriving the parties of a trial

before the court on the basic issues

involved in the litigation." '

"54 So. 3d at 896-97 (emphasis added). In the present cases,

by referring to the special master all matters without

satisfying the applicable standards for doing so, the circuit

court abdicated its judicial function and, thus, exceeded its

discretion."

__ So. 3d at __. The circuit court exceeded its discretion in ordering White

to make all the factual findings and dispositive legal determinations

necessary to decide these cases, which amounts to an impermissible

abdication of the circuit court's judicial function. 4

4We note that Marshall also requested in his pleadings filed below

that the circuit court order an accounting of the trust under § 19-3B-

1001(b)(4). Nothing in this decision should be interpreted as foreclosing

the circuit court from exercising its discretion to order an accounting of

the trust, as requested by Marshall. However, as explained, we do not

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Conclusion

In summary, Marshall has not demonstrated that the circuit court

exceeded its discretion by appointing White as a special fiduciary and

ordering him to take possession of the trust property and to administer

the trust under § 19-3B-1001(b)(5); that decision was within the circuit

court's discretion, and the circuit court exercised that discretion at

Lindsey's and Marshall's request. Marshall has, however, demonstrated

that the circuit court exceeded its discretion by abdicating its judicial

function by ordering White to make all the factual findings and

dispositive legal determinations in these cases; it appears that that

aspect of the circuit court's order was an attempt to, once again, appoint

a special master under Rule 53 and refer to him the dispositive legal

issues of these cases. Therefore, we order the circuit court to vacate that

aspect of its order.

interpret the circuit court's order as one ordering an accounting under §

19-3B-1001(b)(4), but, rather, as a referral of the entirety of the cases to

a special master under Rule 53(b), and, thus, an abdication of the circuit

court's judicial function. We stated in Ex parte Marshall that it did not

appear that an accounting was necessary, but, once again, that was

examining the issue through the lens of Rule 53. Marshall has not

presented any argument discussing the authority of a circuit court to

order an accounting under § 19-3B-1001(b)(4).

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PETITION GRANTED IN PART AND DENIED IN PART; WRIT

ISSUED.

Parker, C.J., and Shaw, Wise, Bryan, Mendheim, Stewart, and

Mitchell, JJ., concur.

Sellers, J., concurs in part and dissents in part, with opinion.

Cook, J., recuses himself.

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SELLERS, Justice (concurring in part and dissenting in part).

I concur in the main opinion's analysis and conclusion with respect

to the Montgomery Circuit Court's jurisdiction over this action. I

respectfully dissent as to the main opinion's conclusion that the trial

court did not err in appointing a special fiduciary.

I agree with the main opinion's conclusion that a special master

appointed under Rule 53, Ala. R. Civ. P., is distinct from a special

fiduciary appointed under § 19-3B-1001(b)(5), Ala. Code 1975. Each

position derives power and authority from a different source and requires

that various predicates be established before appointment. I also agree

that the trial court in the present case granted more authority to the

special fiduciary than is allowed by statute and expanded the power of

the special fiduciary to include responsibilities and actions that appear

to be reserved for a special master or a court.

I dissent as to the conclusion that the trial court properly appointed

a special fiduciary in the first place. The appointment of a special

fiduciary under § 19-3B-1001(b)(5) is akin to the appointment of a

receiver. See Uniform Comment to § 19-3B-1001 (noting that a special

fiduciary is "also sometimes referred to as a receiver"). Appointing a

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receiver is a drastic step that can cause protracted litigation and

irreparable damage to the trust corpus and the beneficiaries of a trust.

That step should not be taken simply as a matter of course. See generally

Elliott v. Weatherman, 396 S.W.3d 224, 228 (Tex. App. 2013) (considering

a Texas statute nearly identical to § 19-3B-1001(b)(5) and noting that

"[t]he remedy of receivership … is an extraordinary remedy that must be

cautiously applied" and that, "[e]ven if a specific statutory provision

authorizes a receivership, a trial court should not appoint a receiver if

another remedy exists at law or in equity that is adequate and complete").

Cf. Carter v. State ex rel. Bullock Cnty., 393 So. 2d 1368, 1371 (Ala. 1981)

("This extraordinary remedy [of appointing a receiver] … should not be

granted unless there is a clear legal right to be protected, no other

adequate remedy, and a showing that the complainants will otherwise

sustain irreparable damage.").

Although § 19-3B-1001(b)(5) allows a court to appoint a special

fiduciary to remedy a breach of trust that "may" occur, I do not view that

as a blanket authorization to appoint a special fiduciary without at least

providing the parties due process before making some specific findings,

supported by sufficient evidence, of improper conduct that would justify

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replacing a trustee with a special fiduciary, changing the location of the

trust corpus, and altering the administration of the trust. The Uniform

Comment to § 19-3B-1001 notes that a special fiduciary can be appointed

if a court concludes "that an appointment would promote administration

of the trust," thereby suggesting that there should have been some

determination of why there has been, or likely will be, a breach of duties

owed to the trust by the existing trustee in this matter. (Emphasis

added.) See also § 19-3B-706(c), Ala. Code 1975 ("Pending a final decision

on a request to remove a trustee, or in lieu of or in addition to removing

a trustee, the court may order such appropriate relief under Section 19-

3B-1001(b) as may be necessary to protect the trust property or the

interests of the beneficiaries." (emphasis added)). A special fiduciary

certainly should not be appointed based on one-sided allegations when

there has been no real opportunity to challenge those allegations, which

appears to be the case here. In my view, before appointing a special

fiduciary, the trial court should hold a proper evidentiary hearing so that

all parties may present relevant evidence and testimony, subject to cross-

examination, on the issue whether duties owed to the trust have been, or

likely will be, violated.

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Although the respondents filed some of the trust's tax returns with

the trial court, tax returns show calculations that are derived by

subjective decisions that take into consideration any number of matters

undisclosed by the returns themselves. And the opposing parties in this

dispute have not been given a sufficient opportunity to submit their own

evidence and explain at an evidentiary hearing the information

contained in the tax returns and to provide context regarding how that

information was used in reaching conclusions as reported on the returns.

In short, the tax returns by themselves do not reveal sufficient raw data

to justify appointing a special fiduciary. Only after holding a proper

evidentiary hearing and making findings of fact, based on the evidence

and testimony submitted during that hearing, that a breach of the trust

has, or is likely to, occur should the extraordinary step of appointing a

special fiduciary be taken. I respectfully dissent to the extent the main

opinion concludes otherwise.

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